'Truth spoken without moderation reverses itself'
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Sunday, February 19, 2017

Mukul Kesavan - The course of justice: Twelve years and counting

In his judgment on the
Delhi serial blasts case, the additional sessions judge, Reetesh Singh,
absolved all three accused of any involvement in the explosions of October 29,
2005. He found one of the three, Tariq Ahmed Dar, guilty of being linked with
the Lashkar-e-Toiba and gave him a 10-year sentence, but since all three
accused had been in jail for the duration of the trial, this meant that Dar had
already served out his time. So two innocent men, Mohammad Hussain Fazli and
Mohammad Rafiq Shah, spent a dozen years in jail for a terror attack they had
no connection with because the police laid charges against them on the basis of
evidence that the court suggested was either fabricated or flimsy to the point
of non-existence. The judgment strongly suggested that the police had
suppressed evidence and made false statements.

Why did a case as
shoddily and dubiously prosecuted as this one take so long to dismiss and why
did two innocent men do a term close to a life sentence? The answer to that
question isn't some weary generalization about the callousness and inefficiency
of the judicial process in India. The answer lies in the frightening
institutional bias against the presumption of innocence once the charge of
terrorism is laid. Rafiq Shah and Hussain
Fazli were arrested in Srinagar three weeks after the explosions in Delhi.
Fazli was a shawl vendor and Shah was a student in Kashmir University. Their
due process rights were violated from the very beginning. They were detained in
a Special Task Force camp and not produced before a magistrate. They were not
provided legal counsel till some months later.

The charge against
Fazli was one of conspiracy that rested entirely on the allegation that he had
made incriminating phone calls. It turned out that the SIM card allegedly used
for these calls had only been used for two innocuous calls, one of which was a
recharge request. There was literally no evidence against him apart from this.

The charge against
Rafiq Shah was more elaborate and serious: he was charged with planting a bomb
in a bus that subsequently exploded, injuring many and blinding the brave
driver who flung it out of the bus. This charge rested on the testimony of
Prosecution Witness 14 (PW14: these witnesses can't be named because they
testified under a witness protection programme) who claimed to have been a
fellow passenger with Rafiq Shah on the bus where the bomb was found. He
supplied a detailed description of Shah: a light skinned man, over six feet
tall, with a 'French' beard, wearing a striped white shirt, grey trousers and a
cap.

The problem with this
description was that it was completely at odds with the one supplied by
Prosecution Witness 19 (PW19). This witness had been interviewed earlier by the
first police responder to the Kalkaji blast, a sub-inspector from the Kalkaji
police post. PW19 had alerted the driver to the passenger who had left his
bundle at the back of the bus. He described this man to the sub-inspector,
Attri, as 5' 10" tall, sallow, clean-shaven and bare-headed, wearing a
shirt the colour of Coca Cola and white trousers. The special cell, to which
the investigation was transferred two days after the blast, seemed unaware of
this contradictory testimony when it presented its charge sheet to the court

Besides the problem
that two prosecution witnesses had supplied descriptions that contradicted each
other's in virtually every detail, Shah insisted from the beginning that he had
a cast-iron alibi: he had been attending classes and doing examinations in the
Islamic Studies department of Kashmir University on the day the explosions were
set off in Delhi. He claimed that both the attendance record and the professors
who took those classes would bear him out.

This is the point at
which the kafkaesque cruelty of the system becomes apparent. The investigators,
in their charge sheet filed in early 2006, enclosed a letter requesting Kashmir
University to send them the relevant attendance record. They also declared that
they hadn't received a response because of the winter break. This winter break
never ended. At no point between the filing of the charge sheet in 2006 and the
judgment 11 years later do the prosecutors acknowledge receipt of the relevant
attendance record from Kashmir University. It's almost as if an intervening ice
age prevented Shah's prosecutors from getting the relevant documents from his
university. Four professors who had taught Shah submitted an affidavit in 2006,
declaring that he had attended their lectures throughout the day of the
explosions. The special cell denied any knowledge of the affidavit.

The charges were
finally framed by the court in 2008, more than two years after Shah's arrest.
Arguments on charges were held three times because judges were, routinely,
transferred. Shah denied all the charges and his lawyers argued that the
charges ought not to be framed because the charge sheet was incomplete. The
prosecutors had still not supplied Shah's attendance record on which the case
against him turned. This was a perfectly legitimate argument because the
Supreme Court has repeatedly emphasized that trial judges must not defer to
prosecutors in framing charges. But it was set aside because judges do, in
fact, defer to prosecutors in a context where dozens of people have been killed
in a terrorist atrocity.

And so Shah's fate was
sealed. This deference to the gravity of the crime, to public opinion and
prosecutorial pressure, made sure that the multiple bail applications moved by
defence counsel in subsequent years were turned down. Sixty people had died,
justice had to be done and if the special cell claimed that it had likely
perpetrators, it deserved its day in court, even if that meant years in jail
for two innocent men framed on flimsy charges.

It's worth mentioning
here that PW14, the principal eye-witness for the prosecution, was, according
to Shah's recorded testimony, repeatedly brought to his jail cell where he
examined Shah carefully and even took photographs of him with his phone. Shah
described PW14 accurately: a stout man wearing thick, bottle-glass spectacles.
Shah refused to submit himself to a TIP (Test Identification Parade) because he
was convinced he was being set up by the special cell to be identified by a
false witness who had examined him at leisure. Shah testified that he was made
to grow a beard in custody which was shaped into a French beard by the jail
barber, the better to match PW14's description of him. (I won't even begin to
detail the other things that, on Shah's written testimony, were done to him in
custody, the torture, the abuse.)

The interminable
nine-year process between the start of the trial in 2008 and its end last week
is mainly the story of a judicial system in which the prosecution is given wide
latitude and near unlimited time in which to present its witnesses. In this
case the prosecution took eight years to present 187 witnesses, 110 of whom
were formal witnesses, victims of the explosions, not material witnesses who
actually advanced the prosecution's case. The prosecution took five years
examining these formal witnesses even though none of them were cross-examined
by the defence. PW14 and PW19 were amongst the last of the material witnesses
to be examined. Their contradictory testimonies which helped sink the
prosecution case (as the prosecution probably knew they would) were saved till
the end.

It was the defence,
which got its turn to summon its witnesses at the end of these eight leisured
years, that produced the professors who testified to teaching or invigilating
Shah on the day of the explosions. It was the defence that produced the
attendance record that the prosecution should have retrieved 11 years ago in
2006 before the charge sheet was framed. The defence, which at no time asked
for an adjournment, examined its witnesses in a single day. The trouble is that
it had to wait for years to make this open-and-shut case which hinged on
evidence that the judge strongly implied the prosecution had had from the
beginning but had suppressed.

After the acquittal
Indian newspapers and websites still led with headlines like The
Hindu's "3 Delhi blasts accused walk free" as if Fazli and
Shah had gotten away with murder. But the prize for pandering to prejudice must
go to the Hindustan Times which led with "2005 Delhi
serial blasts: Court awards 10-year jail term to mastermind, 2 acquitted".
This despite the fact that in the body of its own report the judge specified
that there was no evidence for Dar being involved in the conspiracy behind the
blasts.

It could have been
worse. Without committed pro bono counsel, a tough-minded
judge and Shah's own tenacity and intelligence, he and Fazli could have been
found guilty. It wouldn't have been the first time that the police stampeded
the lower judiciary into a death sentence. Just the other day,
General Bipin Rawat warned Kashmiris in dire terms against obstructing the army
in anti-militant operations. They would, he said, be treated as
'anti-nationals'. What, I wonder, is the term the general would use for
uniformed men in the nation's capital, obstructing the course of justice to
procure death sentences for innocent men, even as the terrorists who actually
killed those 60 Indians remain at large?